THE QUEEN v. HO MUK SHUI

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

Magistracy Appeal No. 1087 of 1985

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BETWEEN

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JUDGMENT

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1. In this matter, the appellant was charged that on the 2nd of August, 1985 at Kowloon, he had in his possession for the purpose of unlawful trafficking a dangerous drug, to wit, 1 paper bag containing 4 plastic bags, each containing a mixture containing salts of esters of morphine. The total weight of the mixture being 33.59 grammes and the total weight of the salts of esters of morphine being 16.13 grammes. The facts upon which the prosecution relied were agreed. They set out that the appellant was, on the 2nd of August, apprehended and searched and a yellow colour paper bag containing four polythene bags of dangerous drug, was found inside his underwear. The appellant himself gave evidence saying that he was a restaurant worker earning $3,000 a month and that he contributed $2,000 of this to his family and that the drugs found upon him were for his own use and that he had just purchased them for $750. He said that they would last him a month and that he injected dangerous drugs 4 times a day.

2. The Magistrate, in his decision, delivered at the end of the trial, said : -

"I have to decide if the possibility of the defendant buying this quantity of drugs for his own use is such it raises a doubt on the Crown's charge. In my view I cannot believe an addict such as defendant could so organize himself to buy a months drugs at a time. The only sensible conclusion in my view, given the presumption level and the quantity here, is that defendant bought this quantity to be used for both his consumption and trafficking to support that consumption."

3. The Statement of Findings, which the Magistrate later furnished, does not take any further the above finding in which the Magistrate sets out his approach to the evidence and rejects that of the defendant. The Statement of Findings, in this regard, simply says:

"I found that I could not accept the claims of the evidence of the appellant. He was not a good witness and I could attach little credibility to his evidence."

4. The Magistrate did not correctly state the law when he said, in the first sentence of his decision that he had to decide "if the possibility of the defendant buying this quantity of dangerous drugs for his own use is such it raises a doubt on the Crown's charge." S. 46 provides that if a person is proved to have in his possession an amount of dangerous drugs in excess of the amount specified in the section that person is presumed, until the contrary is proved, to have had that drug in his possession for the purpose of trafficking therein. The contrary must be proved upon the balance of probabilities. When looking to see whether the contrary has been proved, the Court takes into account all of the evidence before it. The Crown suggested that the test applied by the Magistrate placed a lesser onus upon the defendant than that imposed by the Ordinance as it allowed the presumption to be displaced by a doubt. There is considerable merit in that submission and if this had been the only irregularity in the conviction it might well have been proper to have refused to quash it upon the basis that there was no miscarriage of justice.

5. However, the magistrate went on to say that 'given the presumption level and the quantity here" he was satisfied that the quantity was to be used both for personal consumption and for trafficking. I find difficulty in understanding what was meant by the words "given the presumption level". Once it is proved that a person has drugs in his possession in excess of that level the presumption of trafficking arises. The Court must then decide whether there is evidence which, on the balance of probabilities, displaces it. The "presumption level" is not a factor to be given any weight when arriving at that decision. The Court when making that decision looks at the evidence before and particularly at the amount of drugs proved too have been in the possession of the defendant. The Magistrate seems to have been influenced when rejecting the defendant's evidence by the fact that the amount of drugs was substantially in excess of the quantity which brings the presumption into play i.e. the presumption level. The conviction was, in the circumstances unsatisfactory. I order that it be quashed and that the matter be returned for re-trial by another Magistrate.